In the first days of the 107th Congress, Representative Bob
Barr, Republican of Georgia, introduced the ambitiously titled Terrorist
Elimination Act of 2001 that would nullify the 25-year-old executive order
that forbids US employees from plotting or taking part in assassination.
The bill attracted no cosponsors, appeared on no committee agendas, and
garnered no support from the incoming Bush administration.

But after the horrific events of Sept. 11, and the looming specter of
Osama bin Laden, the assassination question no longer languishes in
obscurity.

The reasoning reflected in the bill and in the rising debate is not new
and in fact continues a decades-old trend. The norm against assassinating
foreign enemies, once so widely and reflexively accepted that it shielded
even Napoleon and Hitler, has come under pressure as changes in the
international system make it seem increasingly anachronistic. One such
development has been the emergence of challenges such as guerrilla warfare
and terrorism, against which traditional military responses have often
proved inadequate.

Thus, contemporary observers are far more likely than those of
centuries past to object to the disconnect between killing tens of
thousands of conscripts in battle while recoiling from the idea of
targeting one or a few culpable individuals. In light of recent events,
this anomaly seems even more unbalanced.

Killing those responsible for the attacks may, moreover, be the only
way of neutralizing the danger they pose. Terrorists are immune to most of
the diplomatic and economic pressures that can be brought to bear on
sovereign states, and they have no real domestic constituency to answer
to. While bringing the responsible parties to trial may appeal to our
sense of lawfulness, there are serious problems with relying exclusively
on a judicial approach. It may well be impossible to indict and convict
these individuals without compromising intelligence sources that would be
indispensable to protecting against future attacks. Indeed, it's both
unrealistic and undesirable to expect that intelligence efforts proceed
with an eye toward whether information would be admissible in a court of
law.

Most fundamentally, even a spate of convictions would not cripple the
organizations that pose the threat - a threat that, while it eludes easy
categorization, is better understood in military than in criminal justice
terms. If terrorist leaders are captured, of course, they must be tried,
but the trials should be in addition to, not in lieu of, the destruction
of the networks they command.

All this might seem to recommend assassination as serving principles of
sound strategy, as well as those of retributive justice and economy of
force. Still, there are good reasons for the United States to hesitate
before rushing to adopt assassination as a foreign policy tool - reasons
that have little to do with the morality of the practice. First, doing so
would divert institutional focus within American intelligence agencies
away from intelligence collection and analysis and toward covert
operations. This would have been a problem even before Sept. 11, but now
the stakes are inestimably higher, as Americans' faith in the intelligence
community's ability to perform its core mission has been understandably
shaken.

Lifting the assassination ban might remove a constraint, but it would
also likely create distracting controversies over the proper balance
between covert activities and the more mundane but essential task of
intelligence gathering. Such disputes plagued the CIA during its Cold
War-era flirtation with assassination. Now is not the time to give
intelligence agencies uncertain marching orders.

Second, assassination runs counter to both international law and the
norms of the international community. (The executive order is legally
redundant; international customary and treaty law already outlaw
assassination.) While it seems naive to worry about such matters at a time
of crisis like this, failure to do so would likely prove shortsighted.
Uprooting terrorist networks cannot be accomplished solely by military
means, nor can that be accomplished quickly. This means that the success
of US policy will continue to hinge heavily on winning and maintaining the
backing of other nations, most critically Islamic states.

Third, and perhaps most important, the United States and its allies
have a significant long-term stake in the stigma against assassination. In
effect, the norm helps limit what is considered the legitimate practice of
international violence to the methods at which these states excel:
conventional military operations. By contrast, assassination is a classic
''weapon of the weak'': a low-tech, small-scale technique that places a
premium on opaque secrecy and fanatical resolve.

Moreover, as an open society, the United States would probably be more
vulnerable to assassination - and if history is a guide, less good at it -
than those against whom it might be used. While some foes, including those
the United States now confronts, will ignore norms anyway, it's prudent to
think beyond current circumstances in deciding long-range policy. For this
country to turn its back on the norm against assassination to eliminate a
Saddam Hussein would amount to reshuffling a deck that was stacked in its
favor. How, then, does the nation go after terrorists without doing
irreparable harm to other interests? A first step should be to better
define the terms of the debate over assassination.

What is often misunderstood is that the country need not reverse its
current policy in order to use lethal force against terrorists.
International law permits a state engaged in armed conflict to kill any
legitimate combatant as long as the means used to do so are lawful - a
proviso that would forbid, for example, gaining access to an enemy leader
by false pretenses or attacking him with illegal weapons, but not
targeting him with cruise missiles or uniformed snipers. Such actions
might be seen as provocative, but no international lawyer would call it
assassination.

The best option for the United States under the present circumstances
is to obey international law scrupulously while taking advantage of the
latitude it allows. This means shelving blustery talk about lifting the
assassination ban, while at the same time aggressively targeting those
responsible for the recent attacks within the context of military
operations that adhere to the laws of war.

Doing things by the book is preferable for two reasons:

First, a lawful military response (along with diplomatic efforts) is
better suited to the nature of the challenge, which is the existence of
large and sophisticated terrorist networks rather than a handful of evil
men. Under the circumstances, simply taking out a few individuals at the
top will not help much, and may make matters worse. Second, although some
erosion of the norm against assassination may be inevitable, it would be
far less pronounced than if the US government were to make a show of
declaring that it will not be bound by international law.

While most countries support the United States in its determination to
respond forcefully to the atrocities of Sept. 11, it is inevitable that
freedom of action in the fight against terrorism will come at a cost, both
diplomatic and moral. It would be folly to embrace a policy in the
passions of the moment that both failed to address the fundamental problem
and squandered the support of crucial elements of the international
community. The United States cannot have the best of both worlds, but it
must guard against ending up with the worst of both worlds.

Fair Use:
This use of this copyrighted material has not been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of public issues. We believe this constitutes a 'fair use' of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. If you wish to use copyrighted material from this site for purposes of your own that go beyond 'fair use', you must obtain permission from the copyright owner.